ELR Citation: ELR 21024
No(s). s. 97-35833, -36018 (9th Cir. Mar 24, 1999)

The court holds that the Alaska National Interest Lands Conservation Act (ANILCA) does not preclude two U.S. Forest Service timber sales in the Tongass National Forest in Alaska. The tribal governments allege that the sales violate an ANILCA provision that prohibits public land use that significantly restricts subsistence unless the use is necessary and involves the minimal amount of public land necessary. The court first holds that the word "necessary" in the ANILCA provision at issue does not have the effect of prohibiting timber sales that affect subsistence and are not required by law. The statute's subsistence uses provision directs the agency head to consider consistency with sound management principles for the utilization of the public lands in connection with evaluating whether a significant restriction of subsistence uses is necessary. The Forest Supervisor concluded that the timber sales are necessary and consistent with sound management of public lands, and the record establishes that these findings are not arbitrary and capricious. Although the tribes are correct that the Tongass Timber Reform Act is subject to other applicable law, the ANILCA subsistence provision does not supersede the Tongass Timber Reform Act because the statutes do not conflict. Furthermore, the tribes are mistaken in arguing that the subsistence uses provision is Native American legislation that must be construed in favor of Native Americans. The statute says that its purpose is to protect subsistence uses by rural residents of Alaska, including both natives and non-natives. There could not be a plainer declaration that Congress was not passing Native American legislation. The court next holds that according to the statute's language, the measure of what is the minimal amount of public lands necessary is the purposes of such disposition, not the minimization of impact on subsistence. Here, the purpose of the disposition was to sell timber. This is consistent with what Congress required in the Tongass Timber Reform Act and what the Forest Service management plan provided for. The Forest Supervisor's decision necessarily considered quite a few effects of the timber sale and made quite a few findings required by law. Subsistence uses by rural Alaskans are an important public interest to which the Forest Supervisor had to give careful attention, but they are not the only such interest.

The court also holds that the Forest Service did not act arbitrarily and capriciously in concluding that it could not identify a "site" as the Kiks.adi Survival March that was eligible for inclusion in the National Register under the National Historic Preservation Act. The Forest Service made extensive efforts for close to three years to identify the Kiks.adi Survival March routes by consulting with experts and considering tribal traditions and individuals' recollections of what relatives had told them. However, there was no physical marking, no documentation, and no well-established tribal consensus to exactly what paths the retreating Kiks.adi had taken. Moreover, the Forest Service followed the National Register criteria; that important things happened in a general area is not enough to make the area a "site." There has to be some evidence of just where the site is and what its boundaries are for it to qualify for federal designation as a historical site.

Counsel for Plaintiff
Thomas S. Waldo
Earth Justice Legal Defense Fund
325 4th St., Juneau AK 99801
(907) 586-2751

Counsel for Defendants
David C. Shilton
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Brunetti and Rymer, JJ.